Brandon v Agricorp, 2006 ONAFRAAT 34

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal@omaf.gov.on.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Brandon v Agricorp

Brandon v Agricorp 2006 ONAFRAAT 34

STATUTE:

Crop Insurance Act

HEARING:

September 7, 2006

DATE OF DECISION:

September 19, 2006

2006-34

NEUTRAL CITATION:

2006 ONAFRAAT 34

IN THE MATTER OF Ontario Regulation 140/96 under the Crop Insurance Act (Ontario) 1996, S.O. 1996, C. 17, Schedule C.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jim Brandon, Forest, Ontario from a decision of Agricorp concerning the adjustment of his claim for his 2005 forage crop under Regulation 380/97 and the Forage Rainfall Plan Insuring Agreement.

Before:

Rod Stork, Chair; John O’Kane, Vice Chair; Doug Flook, Member.

Appearances:

James Brandon, appellant

Gord Fuller, witness for the appellant

Dave Hendrickx, witness for the appellant

Fred Thomson, on behalf of Agricorp, respondent

Tim Borho, witness for Agricrop

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph Ontario on Thursday September 7, 2006. Mr. James Brandon appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal from Agricorp’s refusal to pay a claim related to his 2005 forage crop.

Statutory Context

Section 10 of the Crop Insurance Act (Ontario) states:

Referral of disputes

10. (1) If AgriCorp and a person disagree whether the person qualifies for a contract of insurance, except if the disagreement relates to the time during which a person may apply for a contract of insurance or file a final acreage report or its equivalent, or if AgriCorp and an insured person fail to resolve a dispute arising out of the adjustment of a claim under a contract of insurance, either may appeal the matter in dispute to the Tribunal.

Notice of appeal

(2) To appeal a matter in dispute, the appellant shall file a written notice of appeal with the Tribunal and send a copy of the notice to the other party within the time specified by the regulations made under this Act.

Exclusive jurisdiction

(3) The Tribunal has exclusive jurisdiction to hear and determine all appeals arising under subsection (1).

Decision binding

(4) The decision of the Tribunal in an appeal is binding on the parties, 1999, c. 12, Sched. A, s. 7 (2).

The Issue

1. In the adjustment of his 2005 forage claim, was Mr. Brandon treated fairly and equitably by Agricorp?

Opening Statements

In his opening statement Mr. Brandon told the Tribunal that he farmed 300 acres near Forest, Ontario and that he also raised cattle. Mr. Brandon stated that he was married with three children. He explained that he was a tentative public speaker but that he had brought his appeal before the Tribunal because he was greatly aggrieved by Agricorp’s treatment of him with respect to the 2005 forage claim.

Mr. Brandon stated that he believed that Agricorp acted in accordance with the law when it addressed issues related to forage claims in 2005, however, it did not treat its forage customers equitably as a group but addressed issues related to an administrative error on an individual basis. Mr. Brandon stated that he took issue with the lack of fairness that resulted from Agricorp’s correction of its admitted mistakes in administering the 2005 forage program.

Mr. Brandon explained that Agricorp did not pay a claim to any customers who received a letter dated April 12, 2005 advising them of the availability of new rain stations. He stated that he received a letter dated April 12, 2005 and that he was not paid a claim, however, he paid his insurance premium just as other customers who were paid a claim had done. He said that this was unfair. Mr. Brandon told the Tribunal that Agricorp was within its legal right to re-assign 1300 forage customers to rain stations that paid claims, however, re-assignment of some customers demonstrated poor governance on the part of Agricorp. He said that he should not be penalized due to Agricorp’s errors in administering the forage plan in 2005; all forage customers should have been re-assigned. Mr. Brandon contended that Agricorp sacrificed good management practices in an attempt to avoid paying claims.

Mr. Brandon told the Tribunal that he intended to call his witness to prove that contrary to its policy stated in a letter dated January 23, 2006, Agricorp paid a claim to a customer who received the April 12, 2005 letter. Mr. Brandon maintained that Agricorp preferred to accommodate individual customers instead of addressing the issues for the group of customers who received the April 12, 2005 letter.

Mr. Brandon requested that the Tribunal order Agricorp to treat him similarly to how it treated his witness Mr. Hendrickx. He stated that he and Mr. Hendrickx were attached to the same rain station, they both received the April 12, 2005 letter but only Mr. Hendrickx was paid a claim.

Mr. Fred Thomson stated that Agricorp acknowledged that 2005 was a difficult year for forage producers. He stated that the crux of the appeal was whether Mr. Brandon was treated equitably by Agricorp. Mr. Thomson stated that it was Agricorp’s position that Mr. Brandon was treated fairly relative to how Agricorp treated other customers in Ontario.

The Tribunal received into evidence the following exhibits that were marked throughout the hearing:

Exhibit A – James Brandon’s productions

Exhibit B – Agricorp’s productions

Exhibit C – Agricorp’s letter of April 12, 2005 to Dave Hendrickx

Exhibit D – Dave Hendrickx’s Application for Forage Rainfall Plan

Exhibit E – James Brandon’s map

The Evidence

James Brandon

Mr. Brandon referred to Agricorp’s document brief, Exhibit B, a letter addressed to himself from Agricorp dated December 20, 2005. He quoted from the letter which stated:

“The 2005 crop year has revealed that we did not clearly communicate with forage customers about new and relocated rain stations and the option to switch rain stations from year to year. Along with improving our future communications on the Forage Rainfall Plan, Agricorp has decided to reassign nearly 1300 of the 1650 forage customers to the rain station that would pay the highest claim for the 2005 crop year, from among the stations they can normally choose. This adjustment will increase the number of customers receiving claims from 62 percent to nearly 90 percent. Agricorp will mail cheques to customers with increased claim payments by the end of January 2006.

In 2005, approximately 300 new customers had all plan details described to them by Agricorp staff at the time they enrolled in the plan. In addition, approximately 60 customers chose to switch stations prior to the May 1, 2005 deadline. Since these two groups were aware of their options, their claims will not be amended.”

Mr. Brandon said that the December 20, 2005 letter from Agricorp contains Agricorp’s admission that it did not inform all forage customers of their options for choosing rain stations and that it sought to address the error through re-assignment.

Mr. Brandon pointed out that contained in Agricorp’s letter dated January 23, 2006 as submitted in Exhibit B, was the description of customers that Agricorp had decided not to re-assign. The letter stated that:

“When responding to concerns about the 2005 Forage Rainfall Plan, Agricorp discovered that some of our forage customers were not made aware of new and relocated rain stations, and the option to switch rain stations from year to year. To correct this problem, Agricorp recalculated claims using the highest claim rain station from which each customer could select. Of the 1650 customers enrolled in the plan, approximately 910 will receive additional payments. Total claims paid will increase from $4.2 million to $8.5 million. The following customers will keep their original claim: new customers, existing customers who chose to change stations, and customers who received a letter about newly installed rain stations.

Our records show that we sent you a letter about a newly installed rain station in your township for the Forage Rainfall Plan in 2005. The letter advised you to contact Agricorp for more information. As a result, your claim will remain as originally calculated. A copy of the letter is attached.”

Mr. Brandon told the Tribunal that he took issue with Agricorp’s grouping of customers who were left out of the re-assignment exercise. He said that Agricorp admittedly ignored some of its customers. He submitted an enlarged map of the geographic Townships of Bosanquet and Warwick (Exhibit E) with the locations of forage customers Dave Hendrickx, Hank Baarda, Steve Delorme, Ron McKenzie and Gord Fuller, the location of his home farm and the location of the Bosanquet rain station. He submitted copies of letters that he received from Agricorp dated April 12, 2005 and January 23, 2006 (Exhibit A)

In response to questions Mr. Brandon told the Tribunal that:

• He received the April 12, 2005 letter from Agricorp advising him that new rain stations were available. He chose to remain with the Bosanquet rain station that he had chosen in 2004.
• He did not contact the Agricorp Call Center at the time. He has been a forage insurance customer for the past 10 years.
• He enrolled in the forage plan in 2004. The current plan was new in 2004.
• With respect to the location of his home farm as submitted in Agricorp’s map of rain station locations, (Exhibit B) the mapping is accurate, however, he produces hay at two other locations: one, north east of the home farm and one, south west of the home farm. Both hay fields that are not located at the home farm are located within the geographic Township of Warwick.
• The rain station known as Birnam 7038257 was not open in 2004, though it is now the closest eligible rain station. He chose Bosanquet 7038111 because it is marginally closer to the home farm than Warwick 7038114.
• When he enrolled in the plan and chose a rain station in 2004, he was not aware of the precise location of the rain stations that were available.
• Agricorp was not aware that two of his hay fields were not located at the home farm.
• He cannot remember if he was shown a map indicating rain station locations by the Agricorp Representative who enrolled him in the plan in 2004.

Gord Fuller

Mr. Gord Fuller testified before the Tribunal. He stated that he farmed north of the town of Arkona, Ontario. He said that his farm was located five miles as the crow flies, from Mr. Brandon’s farm. He stated that 2005 was very dry and that he was forced to purchase hay. Mr. Fuller explained that he had chosen Bosanquet station and that he was not paid a claim in October 2005, however, he received a letter from Agricorp in January of 2006 informing him that he had been re-assigned to Warwick rain station 7038114. He stated that he received payment for a claim at 51 percent of his coverage. Mr. Fuller told the Tribunal that he had not requested Warwick 7038114 rain station, but that Agricorp took it upon itself to re-assign him. Mr. Fuller said that he did not receive a letter from Agricorp dated April 12, 2005 advising him of the availability of new rain stations.

Mr. Fuller responded to questions stating that:

• Agricorp made claim payments to customers in October 2005, however, he received no payment. He did not receive Agricorp’s April 12, 2005 letter advising of new rain stations.
• He was a forage plan customer in 2004. The Agricorp Representative who enrolled him in the program in 2004 gave a very general description of the location of the rain stations.
• He initially chose Warwick 7038114 but was told by the Agricorp Representative who enrolled him that he would have to go with Bosanquet 7038111 because it was closer to his farm.
• He did not oppose the insistence of the Agricorp Representative that he choose Bosanquet 7038111, though he was aware that the plan provided for the customer’s choice of rain station.
• He lives in a different geographic township than Mr. Brandon.
• He did not understand the basis for payment of his claim in 2006.
• He was very surprised to learn that Mr. Brandon had not received a payment for a claim.

Dave Hendrickx

Mr. Dave Hendrickx gave evidence before the Tribunal. He referred to Exhibit E stating that he lived just north of Forest, Ontario. Mr. Hendickx said that he was a forage customer in 2005. He told the Tribunal that:

• He chose Bosanquet 7038111 rain station in 2004.
• He received the April 12, 2005 letter from Agricorp advising him that there may be new rain stations that he could choose from.
• He did not receive payment on a claim in October or January 2005.
• His request for payment on claim was reviewed by Agricorp’s Issues Review Committee (IRC) and denied.
• He explained his position to Paul Cappel, an Agricorp Representative who looked into his case: although Agricorp was aware that he received the April 12, 2005 letter (Exhibit C), he was eventually paid a claim.
• He was paid a claim because of a clerical error in Agricorp’s records.

Mr. Hendrickx responded to questions, he stated that:

• He initially enrolled in the program in 2004; he chose Bosanquet 7038111 rain station.
• He was living in the geographic township of Bosanquet at the time of his enrollment in the plan in 2004.
• He resided in the geographic township of Bosanquet when he received Agricorp’s April 12, 2005 letter. As a resident of Bosanquet Township, he should not have received the April 12, 2005 letter.
• He moved to the geographic township of Warwick in November of 2005. He pointed out to the Tribunal (referring to Exhibit E) his location in 2004 and his Warwick Township location as of November 2005.
• He submitted a copy of the April 12, 2005 letter from Agricorp ( Exhibit C) which was in his possession at the time he approached Agricorp’s IRC.
• He did not contact Agricorp in response to the April 12, 2005 letter because his plan was tied to Bosanquet 7038111 rain station, which was by far the closest rain station to his farm at the time.
• Prior to moving to the geographic Township of Bosanquet in 1996 he had resided in Warwick Township. It was explained to him by an Agricorp Representative that some Agricorp records were never updated to indicate that he moved from Warwick Township to Bosanquet in 1996.
• He was eventually paid a claim for 2005 forage in May of 2006.
• He did not receive any explanation about the reversal of the IRC’s decision to deny his claim. He assumed that his payment was based on rain fall data collected at Warwick 7038114 rain station.
• Paul Cappel, an area manager with Agricorp telephoned him and advised that Agricorp had reversed its decision and that it would pay his claim.
• He filled out an application for the forage plan (Exhibit D), it stated that his address was in the geographic township of Bosanquet.
• The enrollment application also indicated that he had chosen Bosanquet 7038111 rain station.

Tim Borho

Mr. Tim Borho gave evidence before the Tribunal. He stated that he is the Account Lead for livestock and forage. He said that he had assumed the position in August 2005. Mr. Borho told the Tribunal that:

• He was a graduate of the University of Guelph with a degree in Agriculture.
• He was raised on a dairy farm and had raised dairy replacement heifers for six years.
• Rain fall is an indication of forage yield. Under the forage plan, rain fall is compared to long term averages.
• Forage yield increases with increase in rain fall to a certain point. The timing of rain fall, species of forage produced, soil types and temperature also affect forage yields.
• Under the forage plan, customers choose the rain station from which data will be collected and the level of coverage required.
• Customers are visited by an Agricorp Representative for enrollment in the plan. The Agricorp Representative gives the customer an explanation of how the plan is administered and provides the customer with a map of rain stations that he/she may choose from. The customer may choose a rain station within his/her geographic township or an adjoining township.
• If the rain fall at the selected station is less than 80 percent of the historical average a claim is paid.
• The period of insurance is from May 1 to August 31 each year.
• Data is collected and recorded under contract to the Ontario Weather Network (OWN). The OWN is expert in weather data collection; it has no interest in the outcome of how its data may be used by its customers.
• The forage plan is area based with the single insured peril being drought.
• Agricorp derives its legal authority to administer the forage plan under the Crop Insurance Act and its Regulations. The plan policy is set out in the Agricorp Crop Insurance Policy Contract of Insurance and the Forage Rainfall Plan Insuring Agreement.
• The plan is constituted under agreement with Agricorp, and federal and provincial levels of government.
• Agricorp cannot unilaterally make changes to the plan without the agreement of both levels of government. Insurance plans are not amended during the insured term of the contract.
• Section I of the Forage Rainfall Plan Insuring Agreement (Exhibit B, Tab 1, page 60) provides for the substitution of one rain station for another if there is a malfunction or interruption in data collection at the chosen rain station.
• Agricorp sends customers insurance renewal materials in March of each year. Customers must cancel their coverage by April 1, each year. Customers may make changes to their coverage or choice of rain station up to May 1, each year.
• Generally there is no farm visit by an Agricorp Representative after the first year of enrollment in the plan unless a customer makes a specific request.
• Customers may contact the Agricorp Call Center to make changes to their level of coverage or rain station.
• Agricorp Call Center telephone interactions are recorded as indicated in Exhibit B, Tab 5, page 93.
• He has personally instructed Agricorp Call Center staff on how to respond to calls concerning forage coverage, renewal, administration and how the forage plan operates.
• Agricorp endeavours to process all claims by the end of September each year.
• 125 rain stations were added to the program in 2005. Not all customers were informed of the installation of the new rain stations.
• Birnam 7038257 rain station was installed in 2005 in the geographic township of Warwick. Agricorp erred in that it only informed the residents of the geographic township of Warwick about Birnam 7038257 rain station; all customers in geographic townships that abut Warwick Township would have been eligible to select Birnam 7038257 rain station but they were mistakenly not notified.
• The notification error first came to light when an eastern Ontario customer complained to Agricorp that a rain station had been installed across the road from where he lived but that he had not been informed of it by Agricorp.
• Agricorp investigated its practices and found that nearly 800 customers province wide should have been informed of the new rain stations but that, only 170 customers were informed by way of a letter dated April 12, 2005.
• Agricorp decided to remedy the error by re-assigning those customers who had not received the April 12, 2005 letter. Customers who changed rain stations in 2005 and new customers in 2005 were considered by Agricorp to have been informed of their options.
• With respect to the letters filed by Mr. Brandon from customers McKenzie, Baarda and Delorme (Exhibit A): All three customers were re-assigned to the Warwick 7038114 rain station. Mr. McKenzie received payment on claim under re-assignment because he lived in the geographic township of Bosanquet and he did not receive the April 12, 2005 letter. Mr. McKenzie was not afforded the opportunity to be informed of the new rain station in adjacent Warwick Township: Mr. Baarda was paid a claim for the same reasons as Mr. McKenzie: Mr. Baarda lives in the geographic township of Plympton; he did not receive the April 12, 2005 letter either and was therefore denied the opportunity to be informed of new rain stations in adjoining townships. Mr. Baarda was re-assigned and paid a claim.
• Mr. Brandon received the April 12, 2005 letter, therefore, Agricorp determined that he was afforded the opportunity to become informed of new rain stations.
• Although Mr. Brandon produces forage at locations other than the home farm, the forage plan is administered based on the location of the customer’s residence.
• In circumstances where a customer’s residence changes during the term of the contract, the customer is deemed to be at the location where he/she resided at the beginning of the term of the contract.
• Mr. Hendrickx lived in the geographic township of Warwick prior to 1996 but Agricorp records were not correctly adjusted at the time he moved in 1996 to Bosanquet township. Apparently the mailing address was correctly amended but the record of the geographic township was not amended and showed that he continued to live in Warwick township.
• Due to the error in recording Mr. Hendrickx’s address, Agricorp sent the letter dated April 12, 2005 to him that should not have been sent. No one else residing in the geographic township of Bosanquet received the letter advising them of the new rain station in the adjacent township.
• All customers who resided in Bosanquet were re-assigned except for the customers who fell into one of the three categories described in the January 23, 2006 letter (Exhibit A).
• Agricorp decided that the fair thing to do was to treat Mr. Hendrickx the same as other customers who resided in the geographic township of Bosanquet: he was re-assigned to a rain station for which he was eligible, that paid the highest claim.
• Agricorp did not want Mr. Hendrickx to be disadvantaged by its error, therefore he was re-assigned.

Mr. Borho responded to questions, he stated that:

• Errors were made in the administration of the 2005 forage program.
• It is not known why Argircorp sent the letter of April 12, 2005 to only some of its forage customers.
• The customers living in the geographic township of Bosanquet paid their premiums, as did customers in other townships.
• The funds to pay claims to re-assigned customers were accessed from the crop insurance fund which is comprised of funds from both levels of government and customer premiums.
• Agricorp approached the respective governmental bodies with respect to explaining the administrative error. It was decided that Agricorp should remedy the error.
• The Agricorp IRC, made up of Agricorp, employees reviewed Mr. Hendrickx’s case. The IRC mandate is to determine if Agricorp has followed its own rules.
• After the IRC process and Mr. Hendrickx’s contact with Paul Cappel, it was felt that there was new information and the decision was changed.
• The 2005 decisions concerning the forage plan administrative errors were made by Agricorp management but the Board of Directors were kept informed.
• Most forage customers were dissatisfied with the design of the program: it contains no provision for measuring the effect of the drought that was experienced in the beginning of the term of the contract.
• Agricorp made every effort to correct the error in administering the forage plan for 2005.
• There were a few complaints from customers who felt that their circumstances were not addressed under the plan.
• There have been eight appeals to the Tribunal from the adjustment of 2005 forage claims. Eight appeals is considered to be a high number of appeals, however there are more forage customers enrolled in the plan in 2006 than there were in 2005. Agricorp’s attempts to correct the error and its re-assignment policy encouraged customer confidence in the plan.
• Although they both received the letter of April 12, 2005 informing them to contact Agricorp about new rain stations, neither Mr. Brandon nor Mr. Hendirckx did so.
• Mr. Brandon was not paid a claim, however, Mr. Hendrickx was paid a claim.
• Agricorp treated its customers the same.
• Mr. Hendrickx’s case was affected by two errors; the records of his residence in the geographic township of Bosanquet meant that he was sent the letter of April 12, 2005 by mistake; no other residents in the geographic township of Bosanquet were sent a letter dated April 12, 2005. Mr. Hendrickx was affected by the administrative error that affected all forage customers; initially, not all customers were notified of the installation of new rain stations.
• Although he had the option to do so, Mr. Brandon did not change rain stations in 2005.

Summation

Mr. Brandon stated that Agricorp demonstrated little corporate governance with respect to its administration of the 2005 forage plan. He argued that he believed that Agricorp adequately discharged its duties to customers, however, it did not treat them all the same. He told the Tribunal that he wanted Agricorp to treat him in the same manner as it did Mr. Hendrickx. Mr. Brandon maintained that Agricorp breached its policy by paying Mr. Hendrickx’s claim and by re-assigning other customers who were not initially in a claim position by virtue of the rain stations that they had chosen. He reminded the Tribunal that he and Mr Hendirckx had chosen the same rain station in 2005 and that they had both received the April 12, 2005 letter; Mr. Hendrickx received payment for his claim but he did not.

Mr. Brandon referred to the evidence that Agricorp admittedly made errors in its administration of the 2005 forage plan. He said that he saw no reason why he should be disadvantaged due to Agricorp’s mistakes. He stated that Agricorp should have reviewed the cases of all forage plan customers immediately when it realized that an error had been made. He stated that 90 percent of customers were re-assigned however, 90 percent of customers did not receive the April 12, 2005 letter. Mr. Brandon took issue with Agricorp’s position that he should accept the resulting non payment of claim, due to his choice of rain station, however, other customers were paid a claim on rain stations that were not of their own choosing.

Mr. Thomson summarized Agricorp’s position stating that, everyone recognizes that 2005 was a difficult year for forage production. He said that it is distressing to Agricorp that customers have appealed to the Tribunal over their dissatisfaction with the plan. Mr. Thomson explained that the intent of the plan was not realized if customers were not satisfied. He reminded the Tribunal that Mr. Brandon contended that he was treated differently from other customers. He stated that Mr. Brandon was treated differently than Mr. Hendrickx and that Agricorp adjusted Mr. Hendrickx’s claim based on the premise that he should not have been placed at a disadvantage due to an error that he did not cause. Mr. Thomson argued that Agricorp reviewed the contract of insurance to confirm that its remedy to the errors was within its legal obligations under the contract of insurance. He agreed with Mr. Brandon’s assertion that Agricorp acted within the provisions of the law. He said that Agricorp was within its legal jurisdiction in making the determination to re-assign customers. He argued that though Mr. Brandon felt otherwise, Agricorp was convinced that it treated its customers equitably. Mr. Thomson requested that the Tribunal find in Agricorp’s favour.

Findings

The evidence indicates that in 2005 there was confusion with respect to the administration of the 2005 forage plan. Due to an administrative error Agricorp did not inform all forage customers that new rain stations were installed; Agricorp sent a letter dated April 12, 2005 that gave notice to 170 forage customers that new rain stations had been installed in their geographic townships which they could select. The letter advised customers to contact Agricorp for more information. All other customers were not notified of new rain stations for which they may have been eligible to choose. The Tribunal heard the evidence that Agricorp sought to address the error by re-assigning a group of customers to the rain station that generated the highest claim payment. Agricorp determined that a group of customers who would not be re-assigned were those customers who: had received that letter of April 12, 2005; were newly enrolled in the plan in 2005 or, who had voluntarily selected a different rain station in 2005 from the rain station chosen in 2004. Agricorp’s rationale for that determination was that this group or class of customers had made fully informed decisions regarding their rain station choice for 2005. The distinction Agricorp made between that class and those that were re-assigned was that the re-assigned class had not received appropriate information to make fully informed decisions concerning their choice of rain station.

The substance of Mr. Brandon’s appeal lies in his comparison of Agricorp’s treatment of his witness Mr. Hendrickx, to himself. The undisputed evidence is that both Mr. Brandon and Mr. Hendrickx had chosen Bosanquet 7038111 rain station in 2005 and that they had both received a letter from Agricorp dated April 12, 2005 advising them of the availability of new rain stations. Neither Mr. Brandon nor Mr. Hendrickx contacted Agricorp in response to the letter, nor did they make any change from their selection of Bosanquet 7038111 rain station. It is clear that Mr. Brandon and Mr. Hendrickx were in the same customer group as categorized by Agricorp, in its letter of January 23, 2006, where it explained that additional claims were to be paid. Both Mr. Brandon and Mr. Hendrickx were in the fully informed class of Agricorp customers in 2005. The Tribunal heard the evidence that Mr. Hendrickx was affected by two errors that were not of his making. He received the April 12, 2005 letter in error and Agricorp records were not accurately updated to reflect his change of geographic township of residence. Mr. Hendrickx was initially denied payment on a claim, however, he was eventually paid. The Tribunal finds, that neither the number or magnitude of errors that preceded the circumstances that Messrs. Brandon and Hendrickx found themselves as part of the group of customers who were denied payment on a claim, has relevance to the fact that these two customers were not treated in accordance with Agricorp’s stated policy for correcting the mistakes in the administration of the 2005 forage plan. Mr. Hendrickx was paid a claim, and the testimony of Mr. Borho was that, Agricorp decided that Mr. Hendrickx should not be disadvantaged by errors that he did not make. It was also Mr. Borho’s testimony that all customers were treated the same. The Tribunal finds that this was not the case with respect to Mr. Brandon and Mr. Hendrickx; Mr. Brandon was not eventually re-assigned and paid a claim.

No evidence was presented to indicate that there was any dispute with respect to the accuracy of weather data obtained from the rain stations or Agricorp’s application of the data for calculating payment on claims.

Decision and Reasons

ORDER OF THE TRIBUNAL

1. The Tribunal orders that Agricorp pay Mr. Brandon a claim based on the rain fall data collected at Warwick 7038114 rain station for his 2005 forage crop.

This Tribunal has before it an appellant in Mr. Brandon who was armed with the very same knowledge as to his rain station options as was Mr. Hendrickx. They both opted to remain with the Bosanquet rain station. They both made claims under the forage insurance plan. Mr. Brandon’s claim was denied while Mr. Hendrickx’s claim was granted using data from the Warwick 7038114 rain station.

Agricorp’s stated policy for re-assigning customers and paying a claim was not applied equitably to Mr. Brandon and Mr. Hendrickx who, although they were in the same customer group that Agricorp determined would not be re-assigned, Mr. Hendrickx was eventually paid a claim, whereas Mr. Brandon was not.

Agricorp commenced this hearing telling the Tribunal that it treated Mr. Brandon fairly and consistently with how it had treated others. Agricorp concluded the hearing by telling the Tribunal it had treated Mr. Brandon equitably.

The Tribunal is satisfied that Mr. Brandon was not treated fairly and equitably by Agricorp in the adjustment of his 2005 forage insurance claim.

In all of the circumstances of this particular case we find in favour of Mr. Brandon and direct Agricorp to re-adjust Mr. Brandon’s 2005 forage insurance claim using the data from the Warwick 7038114 rain station.

DATED AT Guelph, Ontario this 19th day of September, 2006.